Bryan v. Secretary of Health and Human Services
14-898
| Fed. Cl. | Jul 16, 2021Background:
- Petitioner Theodore A. Bryan filed a Vaccine Act petition (filed Sept. 23, 2014) alleging the Oct. 10, 2011 seasonal influenza vaccine caused Chronic Fatigue Syndrome and permanent disability.
- On Oct. 9, 2020, the Special Master found Petitioner had preponderantly established that the flu vaccine caused CFS.
- Petitioner moved for interim attorneys’ fees and costs (initially $127,407.43 on Aug. 27, 2020; supplemented $8,650 for Dr. Kinsbourne, total $136,057.43). Respondent deferred to the Special Master’s discretion.
- Counsel had litigated the case nearly seven years and incurred significant out-of-pocket expert costs (over $35,000); the matter included a two-day entitlement hearing and multiple expert reports.
- The Special Master applied Vaccine Program precedent on interim fees, the lodestar method, and forum rates; found petitioner brought the claim in good faith with a reasonable basis and that interim relief was appropriate to avoid undue hardship.
- The Special Master awarded interim attorneys’ fees and costs in part, totaling $135,922.68, with detailed approval of counsel rates/hours and expert and miscellaneous costs (with one $134.75 medical-record item deferred).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees and costs should be awarded | Bryan sought interim fees to avoid undue hardship given protracted litigation and costly experts | HHS deferred to the Special Master’s discretion | Granted in part; interim award $135,922.68 because good faith, reasonable basis, and undue hardship justified relief |
| Proper hourly/forum rates for counsel | Counsel requested forum rates per Fee Schedule and McCulloch-based precedents for years 2014–2020 | No specific objection from Respondent | Requested hourly rates found reasonable and awarded |
| Reasonableness of hours billed by counsel | Detailed billing records submitted; counsel sought full lodestar compensation ($90,824.64) | Respondent raised no specific objections | Hours judged reasonable; attorneys’ fees awarded in full ($90,824.64) |
| Reasonableness of expert costs (Kinsbourne, Lapp, Levine, Smith) | Requested customary expert rates and travel/time (e.g., Kinsbourne $500/hr; Lapp $400/hr plus half-rate travel; Levine $400/hr; Smith flat $2,000) | No specific objection from Respondent | Expert fees and expenses largely awarded in full; specific grants: Kinsbourne $10,150; Lapp $19,324.08 (including half-rate travel and travel expenses); Levine $6,075; Smith $2,000 |
| Miscellaneous litigation costs (records, transcripts, travel) | Documented costs submitted totaling $7,683.71 | Respondent did not object; one medical-record charge lacked exhibit identification | Miscellaneous costs mostly awarded ($7,548.96); one $134.75 medical-record cost deferred to final fee application |
Key Cases Cited
- Avera v. Sec'y of Health & Hum. Servs., 515 F.3d 1343 (Fed. Cir. 2008) (interim fees permissible; factors include protracted proceedings, costly experts, undue hardship)
- Shaw v. Sec'y of Health & Hum. Servs., 609 F.3d 1372 (Fed. Cir. 2010) (interim fees appropriate where claimant shows undue hardship and good-faith claim)
- Cloer v. Sec'y of Health & Hum. Servs., 675 F.3d 1358 (Fed. Cir. 2012) (denying interim fees undermines Vaccine Act purposes)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar approach: reasonable hourly rate times reasonable hours)
- Saxton ex rel. Saxton v. Sec'y of Health & Hum. Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special master discretion to reduce hours; lodestar methodology)